States Beginning to Treat Online Data as Protected Under the Fourth Amendment

October 15, 2015

Chalk up another victory for online privacy rights.
Last week, California became the latest state to pass a law requiring law enforcement to obtain warrants for online data such as email, text messages, and Tweets. This is in direct contrast to a recent 11th Circuit ruling from May that made clear that the federal judiciary does not consider online data protected by Fourth Amendment rights, saying that data such as cell phone records were information that was “created by a third party” and that “the public is aware that they can be tracked through their cell phones.” This is an important distinction because current Fourth Amendment doctrine requires people to have a “reasonable right of privacy” in any particular item or effect for it to fall under Fourth Amendment protection and thus require a search warrant. Essentially, if your right to privacy isn’t “reasonable,” then the right doesn’t exist.
The dissenting judges in the opinion make a convincing slippery-slope argument about all of the data collected by web sites that could potentially be considered unprotected “third party” data, noting that our video history on YouTube, our posts and friend connections on Facebook, our purchase records from Amazon, and even our online dating preferences could find their way into a police investigation without a warrant. The good news? Cell phones themselves, and the data inside them, are still protected by a unanimous Supreme Court ruling from 2013 that requires police to get a warrant before searching a cell phone, even if the owner has been placed under arrest.
The rules about whether the Fourth Amendment applies to online data, like many other rules, vary between states. In addition, the federal rule is sometimes different. What court you are in can directly affect what rights you have, which seems like a bit of a problem where privacy is concerned. It is not difficult to imagine a situation where in state court, your Amazon search history is protected, but in federal court, it is not. This could encourage the government to focus investigation and prosecution of some crimes in jurisdictions where online data isn’t stringently protected. If the government can essentially take a detour around your rights, do you even have those rights?
The 11th Circuit case, in particular, concerns an armed robbery conviction from 2010, where the police obtained the suspect’s cell phone location records from the cell phone company. Using the location records, police were able to place the suspect in the general area where and when each robbery occurred. The argument was a classic one that we should all be familiar with: the evidence linking the suspect to the crime was gathered illegally, without a warrant, and without that evidence the government would have a much weaker case. If the 11th Circuit had agreed, it could have meant a new trial for the defendant.
Evidentiary issues can be a difficult discussion topic, especially for the government and the judiciary. Judges and prosecutors often become cynical about these issues because the vast majority of people trying to assert their privacy rights in these scenarios are trying to exclude critical evidence and dodge a conviction. If a guilty person is illegally searched and cocaine is found, they bring up the illegal search issue at trial to try to exclude the evidence of the cocaine – in other words, they were guilty, but they’re trying to get out of it. An innocent person in the same scenario didn’t have any cocaine on them, they weren’t charged with a crime, and though they have suffered an injustice, they might not say anything about it because at the end of the day, they weren’t hauled in to court anyway. This has created the cynical assumption that the only people interested in their privacy rights are people with something to hide.
The law put into force by California (and also Virginia, Utah, and several others) may have more far-reaching effects on our privacy rights simply because of the variety and volume of online data that we all possess.

There are only so many things you can keep in your pockets – but think about what you can keep in your computer. We do not want the government to run rampant over our privacy rights and poke around in our online lives just because our data is stored in a virtual folder instead of a physical one.

More and more states are beginning to enact these types of laws to protect our online data from warrantless searches; supposedly, the federal government is following suit. Until that time, however, keep in mind that the government can see every Tweet, all of your cell phone metadata, your emails, your Instagram pictures, and almost anything else of yours online if you’re the subject of a criminal investigation.